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As filed with the Securities and Exchange Commission on September 8, 2000
AMENDMENT NO. 3
TO
SCHEDULE TO
TENDER OFFER STATEMENT
UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
PATHOGENESIS CORPORATION
(Name of Subject Company)
CHIRON CORPORATION AND
PICARD ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
CHIRON CORPORATION
(Names of Filing Persons)
COMMON STOCK,
AND THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS
(Title of Class of Securities)
70321E104
(CUSIP Number of Class of Securities)
WILLIAM G. GREEN, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
CHIRON CORPORATION
4560 HORTON STREET
EMERYVILLE, CA 94608
(510) 655-8750
(Name, address, and telephone numbers of person
authorized to receive notices and communications on
behalf of filing persons)
with copies to:
ALISON S. RESSLER, ESQ.
MATTHEW G. HURD, ESQ.
C/O SULLIVAN & CROMWELL
1888 CENTURY PARK EAST
LOS ANGELES, CALIFORNIA 90067-1725
(310) 712-6600
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[x] third-party tender offer subject to Rule 14d-1.
[ ] issuer tender offer subject to Rule 13e-4.
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[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: [ ]
This Amendment No. 3 amends and supplements the Tender Offer
Statement on Schedule TO, dated August 21, 2000, relating to the offer by
Picard Acquisition Corp. ("Merger Sub"), a Delaware Corporation and a wholly
owned subsidiary of Chiron Corporation, a Delaware corporation ("Parent"), to
purchase all of the outstanding shares of common stock, par value $0.001 per
share (the "Common Stock"), of PathoGenesis Corporation, a Delaware
corporation (the "Company"), together with the associated rights to purchase
Series A Junior Preferred Stock (the "Rights") issued pursuant to the Rights
Agreement, dated as of June 26, 1997, as amended, between the Company and
Harris Trust and Savings Bank (the Common Stock and the Rights together being
referred to herein as the "Shares"), at a price of $38.50 per Share, net to
the seller in cash, upon the terms and subject to the conditions set forth in
the Offer to Purchase, dated August 21, 2000 (the "Offer to Purchase"), a
copy of which was attached as Exhibit (a)(1) to Schedule TO, and in the
related Letter of Transmittal, a copy of which was attached thereto as
Exhibit (a)(2).
Items 1-11.
Items 1-11 are hereby amended as follows:
(a) The fourth paragraph of "8. Certain Information Concerning the
Company" in the Offer to Purchase is hereby amended and supplemented by amending
and restating that paragraph as follows:
"Except as otherwise set forth herein, the information concerning the
Company contained in this Offer to Purchase has been taken solely from or based
solely upon publicly available documents and records on file with the SEC and
other public sources and is qualified in its entirety by reference thereto.
Although Merger Sub, Parent and the Dealer Manager have no knowledge that would
indicate that any statements contained herein based on such documents and
records are untrue, Parent, Merger Sub and the Dealer Manager cannot take
responsibility for any failure by the Company to disclose events which may have
occurred or may affect the significance or accuracy of any such information but
which are unknown to Parent, Merger Sub or the Dealer Manager."
(b) The seventh paragraph of "8. Certain Information Concerning the
Company" in the Offer to Purchase is hereby amended and supplemented by deleting
the third to last sentence of that paragraph.
(c) The paragraph "12. Source and Amount of Funds" in the Offer to
Purchase is hereby amended and supplemented by adding the following sentence at
the end of that paragraph:
"As Parent has immediate access to such cash, Parent does not have, and
does not believe that it needs, an alternative financing plan."
(d) The first, second and third paragraphs of "13. Certain Conditions
of the Offer" in the Offer to Purchase are hereby amended and supplemented by
amending and restating those paragraphs as follows:
"Notwithstanding any other term of the Offer or the Merger Agreement,
Merger Sub will not be required to accept for payment or, subject to any
applicable rules and regulations of the SEC (including the rules relating to
Merger Sub's obligation to pay for or return tendered Shares promptly after the
termination or withdrawal of the Offer), to pay for any Shares tendered pursuant
to the Offer, if:
- the Minimum Condition has not been satisfied at or prior to
the Expiration Date;
- the HSR Condition has not been satisfied; and
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- the Foreign Antitrust Condition has not been satisfied.
Furthermore, notwithstanding any other term of the Offer or the Merger
Agreement, Merger Sub is not required to accept for payment or to pay for any
Shares not previously accepted for payment or paid for, if, at the Expiration
Date, any of the following conditions exists, which, in the reasonable judgment
of Merger Sub or Parent and regardless of the circumstances giving rise to any
such condition, makes it inadvisable to proceed with the Offer and/or with such
acceptance for payment or payment:
(1) there shall have been entered, enforced or issued by any
governmental entity, any judgment, order, injunction or decree which:
- makes illegal, restraints or prohibits the making of
the Offer, the acceptance for payment of, or payment
for, any Shares by Parent or Merger Sub, or the
consummation of the Merger; or
- prohibits the ownership or operation by Parent or
any of its subsidiaries of the Company;
PROVIDED, in each case, that Parent has complied with its covenants to use all
reasonable efforts (including specific actions with respect to antitrust
clearance) to consummate and make effective the transactions contemplated by the
Merger Agreement;
(2) there shall have been any statute, rule, regulation,
legislation or interpretation enacted, enforced, promulgated, amended
or issued by any governmental entity or deemed by any governmental
entity applicable to Parent, the Company or any subsidiary or affiliate
of Parent or the Company or any transaction contemplated by the Merger
Agreement, other than the HSR Act and foreign antitrust and competition
laws which would reasonably be expected to result, directly or
indirectly, in any of the consequences referred to in clause (1) above;
(3) the representations and warranties of the Company
contained in the Merger Agreement shall not be true and correct as of
such time, except for such failures to be true and correct that, in the
aggregate, are not reasonably likely to have a Company Material Adverse
Effect;
(4) the Company shall have failed to perform in any material
respect any material obligation required to be performed by it at or
prior to such time under the Merger Agreement; or
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(5) the Merger Agreement shall have been terminated in
accordance with its terms.
The foregoing conditions are for the sole benefit of Merger Sub and
Parent and may be asserted by Merger Sub or Parent regardless of the
circumstances giving rise to such condition or may be waived by Merger Sub
and Parent in whole or in part at any time and from time to time in the
time periods described above in their reasonable discretion. The failure by
Parent, Merger Sub or any other affiliate of Parent at any time to exercise
any of the foregoing rights shall not be deemed a waiver of any such right;
the waiver of any such right with respect to particular facts and
circumstances shall not be deemed a waiver with respect to any other facts
and circumstances and each such right shall be deemed an ongoing right that
may be asserted at any time and from time to time in the time periods
described above.
Item 12.
Item 12 is hereby amended to add the following:
(a)(12) Election Form with respect to options to acquire PathoGenesis
Corporation common stock and accompanying forms of cover letters.
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ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3
Not Applicable.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: September 6, 2000
PICARD ACQUISITION CORP.
/s/ William G. Green
--------------------------
Name: William G. Green
Title: Director, Vice
President and Secretary
CHIRON CORPORATION
/s/ William G. Green
--------------------------
Name: William G. Green
Title: Senior Vice President,
Secretary and General
Counsel
